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S3 

JfjFFREYM. HARPER 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LiND AVENUE SOUTHWEST 

RENTON, WASHINGTON 98057 

TELEPHONE: (425)227-2161 

FACSIMILE: (425) 227-1007 

jrR^RTMENTOFiRANSPORWION 

/OCKET OPERATJONS 

mi M !3 P h 3^ 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

Joseph Moesser 

FAA Case No. 2O10NM720001 

DMSNO.FAA-201M2S6 

MOTION FOR DECISION 

Judge Richard C. Good\viB 

Judge Goodwin: 

MOTION FOR DECISION 

In accordance with 14 C.F.R. § 13.218(f)(5) (Rule 13.218(f)(5)), tlie Administrator 

(Complainant) brings tlus Motion for Decision. There are no genuijae issues of material fact, as 

Respondent has failed to Answer tlie Complaint. The Complainant is entitled to a decision as a 

matter of law. 

Facts 

Respondent is represented by counsel. Exhibit I. On November 22, 2011, Respondent requested 

a bearing in response to the Complainant's Final Notice of Proposed Civil Penalty requesting that 

any notice be mailed to liiim and his counsel. On December 2, 2011, Complainant served the 

Complaint on Respondent's counsel by facsimile and mail; the facsimile copy was received on 

December.2, 2011, the mailed copy was receipted for on December 5, 2011. Exliibit 2. 

Respondent has not answered the Complaint. 

Argument 

Standard for Decision 

"The administrative law judge shall grant a party's motion for decision if the pleadingsdepositions, answers to interrogatories, admissions, matters that the administrative law judge has 

Coraplainani's Motion For Decision 

Joseph Moesser- FAA-2011-1286 

2010NM720001 

Page 1 of 5 

JEFFREY M HARPER. F.AA .ATTORNEY 

TEL: [425) 227-2161; FAX: (425) 227-1007 
01/10/2012 13:18 4252271007 ANM7 PAGE 03/09 

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officially noticed ... show that tbere is no genuine issue of material fact and that the party making 

the motion is entitled to a decision as a matter of law. The partv' making the motion ... has the 

burden of showing that there is no genuine issue of material fact disputed by the parties." 

14 C.F.R. § 13.218(f)(5). 

Merits 

A respondent must file an answer within "30 days after service of the complaint." 14 C.F.R. 

§ 13.209(a). For ser\'ice by mail, ihe date of service is the date of mailing as shown on the 

certificate of scr\'ice; an additional "5 days shall be added" to the time to respond. 14 C.F.R. 

§§ 13.211(d) and (e). The Complaint in this case was served by facsimile and mail on 

December 2, 2011. Thus, to be timely, the answer must have been filed by .January 6) 2012. A 

"failure to file an answer without good cause shall be deemed an admission of the truth of each 

allegation contained in the complaint"' 14 C.F.R. § 13.209(f). 

Respondent has failed to file an answer. By so doing, Respondent has admitted the truth of each 

and every allegation in the Complaint. There is therefore no genuine issue of material fact 

remaining to be litigated, and Complaijiant is entitled to a decision as a matter of law. 

Sanction 

As discussed above, Respondent has admitted ever}' allegation in the Complaint — and has failed 

to assert any affirmative defenses:— because he failed to file an answer. /Vlthough the sanction 

of $162,500 sought by Complainant is particularly large, it is appropriate given the intentional 

and dehberate efforts of Respondent to conceal prohibited and regulated hajzardous material in 

his luggage, offered for transportation, after having been informed by federal agents of the . 

prohibited and regulated nature of the material, 

A person who knowingly violates the statute or regulations pertaining to the transportation of . . 

hazardous material is "'liable to the United States Government for a civil penalty of at least $250 

but not more than $50,000 for each violation." 49 U.S.C. § 5123(a). In determining tlie amount 

of a civjj penalty, tlie following factors must be considered: 

1. the nature, circumstances, extent, and gravity of the violation; 

2. with respect to the violator, the degree of culpability, any history of prior violations, the 

ability to pay, and any effect on the ability to continue to do business; and 

3. other matters that justice requires. 49 U.S.C. § 5123(c). 

In guiding the Federal Aviation Administration's (FAA) prosecutorial discretion, the Agency has 

developed penalty guidelines, which are found in FAA Order 2150.3B, Appendix C. Up to 

Complain ant" s Motion For Decision 

loseph Mocsscr - FAA-2011 -12S6 

201ONM720O01 

Page 2 of 5 

JEFFREY M. HARPER. FAA ATTORNEY 

TEL: (425) 227-2161; F.\X; (425) 227-1007 
01/10/:>012 13:18 4252271007 ANM7 PAGE 0tJ/09 

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550,000 may be assessed in cases involving intentional or deliberate violations. FAA Order 

2150.3B, Appendix C, Figure C-l(V). 

Respondent was stopped at the Salt Lake Cit>' airport by Agents from the FAA, Transportation 

Security Administratiouj and Federal Bureau of hivestigation. Complaint Paragraph 3. He was 

specifically asked if his luggage contained any ammunition. Complaint Paragraph 3. In 

response, Respondent produced a box &om his luggage which contained material prohibited and 

regulated under the Hazardous Materials Regulations found at 49 C.F.R. Part 171. Complaint 

Paragraphs 4, 5, and I \. The box also contained what appeared to be two boxes of shotgun 

shells. Complaint Paragraphs 4.c and 10. Actual shotgun shells are permitted as ORM-D 

material. 49 C.F.R. § 173,63(b)(i). He surrendered the prohibited and regulated material he had 

revealed to the Agents. Complaint Paragraph 5, He was then asked if he had any other 

prohibited material; he stated he did not, although his bag in fact did still contain prohibited 

material. Complaint Paragraphs 6 and 10-14. 

He then offered the bag, containing the boxes of shotgim shells, to Delta Airlines for 

transportation. Complaint Paragraph 7. The bag bore no identification markings or labels. 

indicating its contents, and it was not accompanied by a Shipper's Certification or Declaration of 

Dangerous goods. Id TTielop row of shells in each box appeared to be new, unexpended shells 

with intact primers. Complaint Paragraph 10. The remaining shells in each.boxj however, were 

expended rounds which contained prohibited and regulated hazardous material; the contents of 

these shells were not discJosed to the federal agents when tbey asked if he had any other . 

prohibited material. Complaint Paragraphs 6 and 10-14. 

By failing to answer the Complaint, Respondent has admitted to the ten alleged violations of the 

Hazardous Material Regulations. Tliis case involves grave violations — the offering of 

prohibited material for transportation. The circumstances under which the material was offered 

are aggravating; 

1. The Respondent was put on specific notice of the prohibited and regulated nature of the 

offered materials by federal agents shortly before the luggage containing the material was 

offered for transportation. 

. 2. The manner in which the materials were packed demonstrates an intentional and 

deliberate effort to conceal tlie materials from the autJiorities. 

These factor.'; also show that Respondent has a high degree of culpability, which is further 

exacerbated by the fact that he lied to federal agents regarding the contents of his luggage. 

Complainant's Motion For Decision 

Joseph Moesser - FAA-2011 - 12S6 

2O10NM72O001 

Page 3 of 5 

.rEfl^RES'M. I-LAJJ^ER, FA.^ ATTORNEY 

TEL; (425) 227-2161; F.\X: (425) 227-1007 
01/10/2012 13:18 4252271007 ANM7 PAGE 05/09 

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Under those circumstances, a civil penalt>' near the maximum permissible sanction is 

appropriate. 

Exhibits 

1. Letter of Representation, 

2. Certified Mail confirmation of mailing and return receipt; Facsimile Transmission 

Verification Report. 

Conclusion 

For the reasons stated above, the FAA respectfully requests that this court grant tliis Motion for 

Decision. There are no genuine issues of material fact; tlie sanction sought is appropriate under 

the facts. 

DATED this lOtli day of Januarv-. 2012. 

fffrey M. Harper 

"AA Attorney 

Complainant's Moticm For Dftci^iion 

Joseph Mocsscr- FAA-2011-1286 

2010NM720001 

Page 4 of 5 

JriFTRHY .M. HARPER, F,\A ATTORWI'I' 

TEL: (425) 227-2161; FAX: (•125) 227-1007 
01/10/2012 13:18 ^252271007 ANM7 PAGE as/09 

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CERTIFICATE O F SERVICE 

I hereby certiiv' that the foregoing Motion for Decision has been served via facsimile and 

Certified Mail -Return Receipt Requested this date, to the following: 

Honorable Richard C. Goodv^^in 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor. Km El2-320 

Washington, D.C. 20590 

FAX: (202) 366-7536 

Atto: Hearuig Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

Federal Aviation Adn:).inj strati on 

800 Independence Avenue SW 

Washington, DC 20591 

F.AX; (202) 493-5020 

Gregory G Skordas 

SKORDAS, CASTON & HYDE, LLC 

341 South Main Street, Suite 303 

SaltLakeCity,UTS4111 

FAX: (801)531-8885 

Dated this 10th day of Januar>', 2012. 

Moifair Chin 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton. WA 98057. 

(425)227-2160 

Complainant's Motion For Decision 

Joseph Moesser-FAA-2011-12S6 

20iaN.M72000! 

Page 5 of 5 

JEFFKRV M. HARPER, F.AA-ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
01/10/2012 13:la 4252271007 ANM7 PAGE 07/03 

•.3i ^ 

Moesser - Letter of Representation 

Kevin Catletl to; Moifair Chin . 11/29/2011 02:54 PM 

To Whom It May Concern: 

Attached, please find the requested letter of representation on behalf of Joseph 

Moesser. Please let me know if you have any questions or concerns. 

Best regards, 

Kevin 

Kevin Catlett 

Law Clerk 

Skordas, Gaston & Hyde, LLC 

Telephone: 801.531.7444 

Facsimile: 801.531.8885 

Email: kcatlett@schhiaw.comlattachment "Moesser - Letter of Rep.pdf deleted by 

Moifair Chin/ANM/FAAI 

Exhibit 1 
01/10/2012 13:13 4252271007 .MM. • 

" PAGE 08/0g 

SKORDAS, CASTON & H^X)E, LLC. 

ATTORNEYS AT LAW 

3 J ( SOUTH MA(/^ STREET 

SUITE 3D 3 

SALT LAKE ciTf, UTAH 34111 

GREGORY G. SKoiTonS. P.C. • TELEPHONE (80) ) 531 -744 d 

l.AR«YC«TCH,P.C. FACSIMILE. (3011531-885 5 

REFiCCft C. RVPE, P.C. 

November 29, 2011 

To Wliom K May Concern: 

Please accept tliis as a letter of rcprcseutatioii on behalf of Joseph JVlv»esser. The 

law fimi of Skordas. Caston & Hyde is acting legal counsel for Mr. Moesser in all 

matters relating lo Federal Avialion Adniinistralion. 

SinccTcl 

, CASTON & HYDE, LLC 
01/10/201 2 13:1 0 4252271007 ANM7 PAGE 09/09 

TRANSMISSION VERIFICATION REPORT 

TIME 

NAME 

FA:^ 

TEL 

SER,ti 

12/32/2911 08:24 

ANT-^? 

4252271807 

EROL93995721 

DATE,TIME 

FA>; NO./NAME 

DijRATION 

PAGE(S) 

RESU-T 

MODE 

12/02 Q3:.23 

316015318S35 

60:01:19 

Q9 

QK 

STANDARD 

ECM 

FACSIMILE MESSAGE 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF REGIONAL COUNSEL 

ANM-7 

1601 LIND AVENUE S.W. 

RENTOK, WASHINGTON 9S057 

The information cortained in this facsimile message is legally privileged and confidential 

infonnation and is intended only for the use of the individual named on tliis covet ahcet. 

If the reader of this message is not the intended recipient, you are hereby notified that any 

use, dissemination, distributio.n, or copy of tlijs facsimile is strictly prohibited; If you 

have received this facsimile in errof. please immediateiv notify us bv telephone at 

425-227-2007. 

• 

DATE: 

TO: 

FAX NO.: 

PHONE NO.: 

RE: 

December 2,2011 

Gregory Skordas 

801.531.88S5 

FAA Case No. 

2010NM720001 

J. Moesser 

NO. PAGES: 

FROM: 

FAX NO.: 

PHONE NO.: 

• -• • • - • --•• ' 

9 ihclifding cover 

Moifair Chin 

425-227-1007 . 

425-227-2160 

Re: CoTTiplaint